Tag Archives: Illegal Aliens

Following a jury verdict, in favor of the plaintiff-employees, the defendant-employer appealed. As discussed here, the defendant-employer contended that plaintiffs, undocumented (or “illegal”) aliens lacked standing under the FLSA to assert a claim for unpaid wages. Reasoning that unauthorized aliens fit within the definition, scope and purpose of the FLSA, the Eighth Circuit affirmed the jury’s verdict in favor of the workers, and held that undocumented aliens are entitled to the FLSA’s protections regarding work already performed.

Discussing judicial precedent the Eighth Circuit explained:

The only circuit court to address the question directly, seePatel v. Quality Inn S., 846 F.2d 700 (11th Cir.1988); numerous district courts, including the one in this case; and the Secretary of Labor (Secretary) all agree: employers who unlawfully hire unauthorized aliens must otherwise comply with federal employment laws. The employers’ argument to the contrary rests on a legal theory as flawed today as it was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit income. As Justice Oliver Wendell Holmes explained in United States v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), there is no “reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay.” Here, too, there is no “reason why the fact that” the employers unlawfully hired the workers “should exempt” them “from paying the” wages “that if lawful” they “would have to pay.” Id. “Certainly there is no reason for treating” the employers “more leniently.” Rutkin v. United States, 343 U.S. 130, 137, 72 S.Ct. 571, 96 L.Ed. 833 (1952). Like the Eleventh Circuit, we hold that aliens, authorized to work or not, may recover unpaid and underpaid wages under the FLSA. See Patel, 846 F.2d at 706 (“[U]ndocumented workers are ’employees’ within the meaning of the FLSA and … such workers can bring an action under the act for unpaid wages and liquidated damages.”).

The court then went on to analyze the plain language of the FLSA:

Because this case is one of statutory interpretation, our “starting point … is the existing statutory text.” Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). As to minimum wages, the text of the FLSA states “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the [minimum wage rate].” 29 U.S.C. § 206(a) (emphasis added). The FLSA’s overtime wage scheme is more complex, but the crux is simple: “[n]o employer shall employ any of his employees … for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” Id. § 207(a)(1).

(d) “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

(e)(1) [With certain statutorily defined exceptions], the term “employee” means any individual employed by an employer.

….

(g) “Employ” includes to suffer or permit to work.

29 U.S.C. § 203(d), (e)(1), (g) (emphasis added). During debate over the FLSA, then-Senator Hugo Black (who, shortly before his elevation to the Supreme Court, sponsored the bill that ultimately became the FLSA) called the FLSA’s “definition of employee … the broadest definition that has ever been included in any one act.” 81 Cong. Rec. 7656–57 (1937).

Importantly, Congress showed elsewhere in the statute that it “knows how to” limit this broad definition “when it means to,” City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 329 n. 22, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981), and it did not do so with respect to unauthorized aliens. See 29 U.S.C. § 203(e). The FLSA contains detailed limitations for certain governmental employees, see id. § 203(e)(2); family members engaged in agricultural work, see id. § 203(e)(3); state, local, and interstate governmental volunteers, see id. § 203(e)(4); and “individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks and who receive from the food banks groceries,” id. § 203(e)(5). Nowhere in this list do we see any indication Congress meant to exclude unauthorized aliens from the FLSA’s broad application to “any individual” whom an employer “suffer[s] or permit[s] to work.” Id. § 203(e)(1), (g).

As the Supreme Court has long emphasized, “where, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’ ” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)). Because the FLSA by its plain terms protects aliens working without authorization, the employers’ argument must fail unless the employers can point to a different statutory basis for limiting “the broadest definition that has ever been included in any one act,” 81 Cong. Rec. at 7657.

Rejecting the defendant’s argument that the IRCA and Hoffman Plastic supported a conclusion that such workers were not entitled to the FLSA’s statutory protections, the court reasoned:

The employers point to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), for the proposition that the IRCA implicitly amended the FLSA to exclude unauthorized aliens. The employers misread Hoffman, ignore the relevant agency’s reasonable interpretations of the FLSA and the IRCA, and “ascribe to Congress an intent at variance with the purpose[s] of th[e] statute [s],” Wyandotte Transp. Co. v. United States, 389 U.S. 191, 200, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967).

In Hoffman, the Supreme Court held that unauthorized aliens may not receive backpay after being terminated for engaging in union activities protected by the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151–169. See Hoffman, 535 U.S. at 151–52, 122 S.Ct. 1275. The issue in Hoffman was not, as the employers seem to think, whether the NLRA’s broad definitions of “employer” and “employee,” see 29 U.S.C. § 152, excluded unauthorized aliens from all protection by the National Labor Relations Board (NLRB). See Hoffman, 535 U.S. at 142–43, 122 S.Ct. 1275. Rather, the question in Hoffman was whether the NLRB’s remedial power extended far enough to “allow it to award backpay to an illegal alien for years of work not performed.” Id. at 149, 122 S.Ct. 1275 (emphasis added). Far from concluding the NLRA did not protect unauthorized aliens for work actually performed, the Hoffman court—after considering Congress’s intervening enactment of the IRCA—reaffirmed its earlier holding in Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), that the NLRA applies to the actual employment of unauthorized aliens. See Hoffman, 535 U.S. at 151–52, 122 S.Ct. 1275;Sure–Tan, 467 U.S. at 893–94, 104 S.Ct. 2803.

[A]n order requiring an employer to pay his undocumented workers the minimum wages prescribed by the [FLSA] for labor actually and already performed…. does not … condone that violation or continue it. It merely ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers’ past labor without paying for it in accordance with minimum FLSA standards.

Id. at 243. Interpreting an analogous definition of “employee” in Agri Processor, the D.C. Circuit found “absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of ’employee’ include[d] undocumented aliens.” Agri Processor, 514 F.3d at 5.

The court also noted that the Eleventh Circuit had recently reiterated the undocumented aliens were protected by the FLSA, further supporting its conclusion regarding same:

Shortly after our court heard argument in this case, the Eleventh Circuit reaffirmed its decision in Patel “that undocumented aliens may recover their unpaid wages under the FLSA.” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1306 (11th Cir.2013). Rejecting arguments similar to those advanced by the employers here, the Eleventh Circuit concluded “the IRCA does not express Congress’s clear and manifest intent to exclude undocumented aliens from the protection of the FLSA.” Id. at 1308.

The court found further support in the fact that the DOL has long taken the position that undocumented aliens are covered under the FLSA:

As the Secretary explains, there is no conflict between the FLSA and the IRCA. Both statutes work in tandem to discourage employers from hiring unauthorized workers by “assur[ing] that the wages and employment of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment,” Sure–Tan, 467 U.S. at 893, 104 S.Ct. 2803.

The Department of Labor’s position that the FLSA applies to aliens without employment authorization is longstanding and consistent. In 1942, just four years after the FLSA’s passage, the Department of Labor’s “Wage and Hour Administrator opined that alien prisoners of war were covered by the [FLSA] and therefore were entitled to be paid the minimum wage.” Patel, 846 F.2d at 703. Since then, in case after case, the Department of Labor has taken the same position it takes here.

In the Secretary’s amicus brief filed in this case, the Secretary explains that applying the FLSA to unauthorized aliens “is essential to achieving the purposes of the FLSA to protect workers from substandard working conditions, to reduce unfair competition for law-abiding employers, and to spread work and thereby reduce unemployment by requiring employers to pay overtime compensation.” Given the Department’s decades-long consistency and the Secretary’s “specialized experience and broader investigations and information” in these matters, we think the Secretary’s position is persuasive and merits Skidmore deference—to the extent there is any statutory ambiguity. Skidmore v. Swift & Co., 323 U.S. 134, 139, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also Godinez–Arroyo v. Mukasey, 540 F.3d 848, 850 (8th Cir.2008).

Finally the court recognized Congressional intent also supported its conclusion:

We agree with the Secretary’s position, independent of any deference to the Department of Labor’s expertise, because Congress’s purposes in enacting the FLSA and the IRCA are in harmony. The IRCA unambiguously prohibits hiring unauthorized aliens, and the FLSA unambiguously requires that any unauthorized aliens—hired in violation of federal immigration law—be paid minimum and overtime wages. The IRCA and FLSA together promote dignified employment conditions for those working in this country, regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization. “If an employer realizes that there will be no advantage under the” FLSA “in preferring [unauthorized] aliens to legal resident workers, any incentive to hire such … aliens is correspondingly lessened.” Sure–Tan, 467 U.S. at 893, 104 S.Ct. 2803. Exempting unauthorized aliens from the FLSA would frustrate the purposes of the IRCA, for unauthorized workers’ “acceptance … of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.” De Canas v. Bica, 424 U.S. 351, 356–57, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976).

Holding employers who violate federal immigration law and federal employment law liable for both violations advances the purpose of federal immigration policy by “offset[ting] what is perhaps the most attractive feature of [unauthorized] workers—their willingness to work for less than the minimum wage.” Patel, 846 F.2d at 704. For this reason, prohibiting employers from hiring unauthorized aliens is in harmony with requiring employers—including those who break immigration laws by hiring unauthorized workers—to provide fair working conditions and wages. Both (1) the legislative history of the IRCA, which we reference “for those who find legislative history useful,” United States v. Tinklenberg, 563 U.S. ––––, ––––, 131 S.Ct. 2007, 2015, 179 L.Ed.2d 1080 (2011), and (2) “our steadfast canons of statutory construction,” United States v. Johnson, 703 F.3d 464, 468 (8th Cir.2013), confirm this point.

First, the House Committee on Education and Labor’s report on the IRCA explained Congress did

not intend that any provision of [the IRCA] would limit the powers of State or Federal labor standards agencies such as … the Wage and Hour Division of the Department of Labor … to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by these agencies. To do otherwise would be counter-productive of our intent to limit the hiring of undocumented employees and the depressing effect on working conditions caused by their employment.

H.R.Rep. No. 99–682(II), at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5758 (emphasis added). When Congress passed the IRCA, at least the authors of this report expected the FLSA would continue to protect unauthorized aliens from substandard working conditions and wages.

Second, § 111(d) of the IRCA “authorized to be appropriated, … such sums as may be necessary to the Department of Labor for enforcement activities of the Wage and Hour Division … in order to deter the employment of unauthorized aliens and remove the economic incentive for employers to exploit and use such aliens.” Pub.L. No. 99–603, § 111(d), 100 Stat. 3359, 3381 (1986). Presuming, as the employers do, that the IRCA impliedly exempts unauthorized aliens from the protections of the FLSA would render this section “mere surplusage,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174, 2 L.Ed. 60 (1803). No “sums” would “be necessary” to enforce the FLSA as to unauthorized aliens if the FLSA did not apply to their employment. § 111(d), 100 Stat. at 3381. A reading that turns an entire subsection into a meaningless aside “is inadmissible, unless the words require it.” Marbury, 5 U.S. (1 Cranch) at 174. The IRCA’s words do not require it, so “the presumption against surplusage [is] decisive.” Johnson, 703 F.3d at 468.

As such, the court held that “unauthorized aliens may sue under the FLSA, 29 U.S.C. §§ 206(a), 207(a), 216(b), to recover statutory damages for work actually performed.”

Anyone who has ever moved for or opposed a motion for conditional certification (i.e. a “Stage 1” motion) of a collective action is likely familiar with the common defense tactic whereby a defendant asserts that the named plaintiff and members of the putative class are not similarly situated. Typically a defendant argues that individualized issues pertaining to the claims of the named plaintiff(s) (and members within the putative class) render the case ill-suited for class/collective treatment. As discussed below, three recent decisions discuss three separate issues related to this analysis. In the first, a court held that a pro se plaintiff could not adequately serve the interests of the putative class and denied conditional certification. However, in the second and third cases discussed below, the courts rejected the defendants’ contentions that: (1) an undocumented (“illegal”) immigrant was ill-suited to serve as a representative plaintiff; and (2) issues regarding whether specific putative class members signed binding arbitration agreements relating to the issues raised by the named-plaintiff were not properly raised at stage 1.

Pro Se Plaintiff Inadequate Representative for Collective Action

Koch v. CHS Inc.

In the first case, the pro se plaintiff (apparently fairly savvy) moved for conditional certification. Denying the motion, the court held that a pro se plaintiff cannot pursue their claims in a collective action for lack of adequacy of representation. Specifically, the court explained:

The issue of whether a pro se plaintiff can sue on behalf of other members in a collective action is one of adequacy of representation. Determining adequate representation is typically based on a two-part inquiry: “First, the named representatives must appear able to prosecute the action vigorously through qualified counsel, and second, the representatives must not have antagonistic or conflicting interests with the unnamed members of the class.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). Courts have generally concluded that a pro se plaintiff cannot pursue claims on behalf of others in a representative capacity. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.2008); see also Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997) (“While a non-attorney may appear pro se on his ow n behalf, he has no authority to appear as an attorney for others than himself.”); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a pro se litigant may not appear as an attorney for others). Here, because Koch is a pro se litigant, he cannot pursue claims on behalf of other CHS employees in a representative capacity.

Accordingly, the Court agrees with CHS that Koch, because he proceeds in the litigation pro se, cannot represent the class members on whose behalf he purports to bring suit. Therefore, proceeding with the litigation as a collective action is not permitted pursuant to 29 U.S.C. § 216(b). The motion will be denied.

Named-Plaintiff’s Immigration Status Has No Bearing on Similarly Situated Analysis

Torres v. Cache Cache, Ltd.

In the second case of interest, arising from alleged tip pool violations at defendant’s restaurant, the defendant opposed conditional certification, in part, based on the fact that the named-plaintiff was allegedly an undocumented immigrant. The court rejected this notion, citing well-established authority that an FLSA plaintiff’s immigration status is irrelevant to a claim inasmuch thereunder, inasmuch as same seeks payment for work already performed. Discussing this issue the court reasoned:

Finally, in an apparent attempt to distinguish Plaintiff from other proposed collective action members, Defendants note his status as an illegal immigrant and involvement in other similar FLSA lawsuits. Neither of these issues, however, is likely to provide Defendants with a valid defense that is unique to Plaintiff. First, there are a number of cases finding that evidence of immigration status has no relevance in an FLSA action. See e.g. Reyes v. Snowcap Creamery, Inc., 2012 WL 4888476 at *2 (D.Colo. Oct.15, 2012) (recognizing that “weight of authority clearly holds that a plaintiff’s immigration status is irrelevant in an FLSA action” and citing supporting authority). It is also questionable whether Defendants will be able to introduce evidence of other lawsuits involving Plaintiff. See Van Deelen v. Johnson, 2008 WL 4683022 at *2 (D.Kan. Oct.22, 2008) (evidence of plaintiff’s prior lawsuits cannot be admitted for purpose of proving that plaintiff is litigious but may be admissible for other purposes).

Whether Putative Class Members’ Claims Are Subject to Arbitration is an Issue Reserved for Stage 2

Hernandez v. Immortal Rise, Inc.

In the final decision, the court had before it the Report and Recommendation of the magistrate judge recommending conditional certification. As it had in its opposition to the underlying motion, the defendant argued that members of the putative class who had previously signed agreements to arbitrate their FLSA claims, were not similarly situated to the plaintiff and the remainder of the putative class. As such, the defendant argued such putative class members should be excluded from receiving notice of their right to join the case by opting in. Rejecting this contention, the court held that the issue of whether (and who) may have signed arbitration agreements, is an issue reserved for Stage 2 (decertification) analysis, and is not properly addressed at the conditional certification stage:

Next, defendants argue that the proposed class should be limited to cashiers and those who had not signed arbitration agreements, excluding grocery packers and delivery workers, whom defendants never employed, and employees subject to arbitration agreements. However, these are issues of fact that should be determined during discovery rather than at this preliminary stage. See D’Antuono v. C & G of Groton, Inc., No. 11–cv–33, 2011 U.S. Dist. LEXIS 135402, at *12–13 (D.Conn. Nov. 23, 2011) (holding that the enforceability of arbitration agreements should not be determined during conditional class certification); Lujan v. Cabana Mgmt., No. 10–cv–755, 2011 U.S. Dist. LEXIS 9542, at *23–24, 2011 WL 317984 (E.D.N.Y. Feb. 1, 2011) (quoting Realite v. Ark Rests. Corp., 7 F.Supp.2d 303, 307 (S.D.N.Y.1998)) (holding that defendants’ contention that its restaurants constituted separate entities raised a contested issue of fact, and was therefore not a basis for denying conditional class certification). Thus, Judge Bloom correctly found that the proposed class should not be limited as defendants propose.